Delhi High Court
Kamla Nijhawan vs Sushil Kumar Nijhawan And Ors. on 3 September, 2014
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 03rd September, 2014
+ I.A. No. 2166/2014 (Order XII Rule 6 CPC) in CS (OS)
No. 3048/2011
KAMLA NIJHAWAN ..... Plaintiff
Through Mr. Ved Prakash Sharma, Advocate,
with Ms. Amrit Kaur Oberoi,
Advocate and Ms. Shubhani Jain,
Advocate.
versus
SUSHIL KUMAR NIJHAWAN AND ORS. ..... Defendants
Through Mr. Manish Vashisht, Advocate and
Mr. Dhruv Rohtagi, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
1. This is an application under Order XII Rule 6 read with Section 151 of
the Code of Civil Procedure, 1908 (CPC) seeking a decree in favour of
the Plaintiff and against the Defendants on admission.
2. A suit for possession, declaration, permanent and mandatory
injunction, mesne profits and damages has been filed by the Plaintiff
against the Defendants. Plaintiff Smt. Kamla Nijhawan is the
grandmother of Defendant no. 1 and mother of Defendant no. 2.
Defendants no. 3 and 4 are the government bodies and lessors of
property no. 13/27, West Patel Nagar, New Delhi-110008.
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3. The sum and substance of the averments made in the plaint is that Late
Shri Balwant Rai Nijhawan, the deceased husband of the Plaintiff had
executed a Will dated 22.08.1995 whereby he bequeathed various
properties owned by him at the time of his death including ground
floor of property no. 13/27, West Patel Nagar, New Delhi upon the
Plaintiff. The Plaintiff's grievance is that Defendant no. 2 has
fraudulently got the ground floor of the suit property mutated in his
name on the basis of the earlier said Will, whereas the Plaintiff was to
be the owner of the entire estate of the deceased Balwant Rai
Nijhawan including the ground floor of the property. The Plaintiff,
therefore, sought a decree requiring Defendants no. 1 and 2 to
handover the vacant and peaceful possession of the ground floor of
property no. 13/27, West Patel Nagar, New Delhi and declaration that
the mutation procured by Defendant no. 2 in his favour is null and
void.
4. The Plaintiff also sought a restraint order against Defendants no. 1 and
2 from creating any third party interest and the mesne profits till the
vacant and peaceful possession of the ground floor is handed over to
the Plaintiff.
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5. Defendants no. 1 and 2 have contested the suit by way of filing written
statement and they have denied the averments made in the plaint.
Defendants no. 1 and 2, however, did not dispute the Will dated
22.08.1995 purported to have been executed by the deceased Balwant
Rai Nijhawan.
6. In reply to the present application, the Defendants have not disputed
the execution of the Will dated 22.08.1995. The Defendants have
admitted that the Will dated 22.08.1995 is the last Will of Late Shri
Balwant Rai Nijhawan. The Defendants have, however, taken up a
plea that the ground floor of property no. 13/27, West Patel Nagar,
New Delhi was bequeathed in favour of Defendant no. 2 and
thereafter, the Plaintiff was granted a life estate thereby postponing the
bequeath in favour of Defendant no. 2 till the Plaintiff was alive. It is
thus, stated that the Plaintiff is not entitled to any decree on admission.
7. In the rejoinder to the reply, the Plaintiff has reiterated that she got the
property absolutely on the death of her husband and Defendants' plea
that the Plaintiff was given only life estate is misconceived.
8. For appreciating the application under Order XII Rule 6 CPC, it will
be apposite to extract relevant paragraphs of the Will propounded by
the Plaintiff and not disputed by Defendants no. 1 and 2, hereunder:-
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"WILL
I, B.R. Nijhawan (Balwant Rai Nijhawan) son of Late
Shri Dina Nath Ninjawan, Advocate, presently resident of
33 Ormely Road, S.W. 12 London, do hereby make this
Will of mine at London, this the 22nd of August, 1995.
x x x x x x x x x
I am the owner and in possession of all my properties
mentioned in schedule 'A' attached and all these
properties are my separate, self acquired and exclusive
properties excepting one property bearing no. 13/27,
West Patel Nagar the ground floor which it has been
given to me by my father Late Shri Dina Nath Nijhawan
through Will that he made. All these properties are
capable of being disposed of in accordance with the law
to which the properties are subject.
I have got two sons, namely, Vinod Kumar Nijhawan (V.
K. Nijhawan) and Anil Kumar Nijhawan (A. K.
Nijhawan), besides my wife, Mrs. Kamla Nijhawan.
After fully considering the pros and cons of the whole
matter and realising that death is the law of nature and
one has to give up his mortal coil sooner or later and
with a view to avoid any further dispute and unwanted
any misunderstanding in the family, I am making this
Will as under:-
(A) I have got one industrial property mentioned at Item
no. 1 of the Schedule (A). This property plot including
construction was exclusively done by me and I have
already bequeath no. 1/22, Phase I, Sector 20, Udyog
Vihar (Dunda Hira) District Gurgaon, Haryana State, to
my eldest son Vinod Kumar Nijhawan.
(B) Regarding property at Item no. 2 of the schedule 'A'
the same is bequeath and devise in favour of my eldest
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son Vinod Kumar Nijhawan. The property has already
been registered in his name.
(C) Regarding property at Item no. 3 of the schedule 'A'
I hereby devise and bequeath in favour of my younger
son Anil Kumar Nijhawan, who is living in States. If this
property being 33 Ormely Road, S.W. 12 London is sold
during my lifetime then in that case, the proceeds of the
sale price will go to Anil Kumar Nijhawan my youngest
son.
(D) Regarding house at Noida at Item no. 4 of the
schedule 'A' which was exclusively purchased by me, I
bequeath in favour of my eldest son Vinod Kumar
Nijhawan. This property has also been got registered in
his name.
(E) Regarding house being no. 13/27, West Patel Nagar
(ground floor) at Item no. 5 of Schedule 'A' which was
handed over to me by my father Late Shri Dina Nath
through Will I bequeath in favour of Vinod Kumar
Nijhawan. This ground floor consists of four rooms,
kitchen, store, bath room & latrine as well as open
ground at the back and front with a verandah. My son
Vinod Kumar Nijhawan shall be the owner of my interest
in the aforesaid property.
x x x x x x x x x
Regarding moveable property at Item no. 5 of the
schedule 'A' the same is bequeathed and devised in
favour of my wife, Mrs. Kamla Nijhawan, who shall be
the owner thereof after my death.
I have disposed of all my properties mentioned in the
schedule 'A' but if however, I acquire any other property
before my death shall also be the subject matter of this
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Will and shall go to my two sons Vinod Kumar NIjhawan
and Anil Kumar Nijhawan in equal shares.
I want to make it further clear that I shall remain full-
fledged owner of all my properties moveable and
immoveable during my life time and after me if my wife
Mrs. Kamla Nijhawan survives, she will be the owner of
all my entire estate both moveable and immovable and
this Will shall have effect after her death"
x x x x x x x x x"
Sd/-
Balwant Rai Nijhawan
TESTATOR"
9. Referring to Section 124 of the Indian Succession Act, 1925 (Act of
1925) and illustration (i) to the Section, Advocate Ved Prakash
Sharma, learned counsel for the Plaintiff has urged that bequest in
favour of Defendant no. 2 was only in the nature of contingent bequest
in case the Plaintiff did not survive deceased Balwant Rai Nijhawan.
Since the Plaintiff has survived, the legacy to Defendant no. 2 is not to
take effect and the Plaintiff is entitled to deal with the property
independently.
10. The learned counsel for the Plaintiff has referred to Kamla Devi v.
Prabhawati Devi & Ors., (2001) 10 SCC 602 and has contended that
since there were no fetters upon bequest to the Plaintiff, the
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subsequent bequest in favour of son and grandson was held to be of no
consequence.
11. The learned counsel for the Plaintiff heavily relies on Mauleshwar
Mani & Ors. v. Jagdish Prasad & Ors., (2002) 2 SCC 468 to urge that
if a document is susceptible two constructions, one which will give
effect to all the clauses made therein while the other which will render
one or more of them nugatory, the former should be preferred.
Referring to para 10 of the report, the learned counsel for the Plaintiff
urges that if it is not possible to resolve the conflict in the clauses, then
the first clause in a Will will prevail over the subsequent clause/
clauses.
12. On the other hand, the learned counsel for the Defendants refers to the
principles reiterated by three Judge Bench decision of the Supreme
Court in Navneet Lal @ Rangi v. Gokul & Ors., (1976) 1 SCC 630 and
has urged that if full effect is given to every word used in the Will
dated 22.08.1995, it will be evident that there was only a life estate in
favour of the Plaintiff.
13. The learned counsel for the Defendants has also urged that the
Defendants who are the grandson and son of the Plaintiff have all
respect for their grandmother and mother. She had been visiting India
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only once an year or two and a half portion of the ground floor of
property no. 13/27, West Patel Nagar, New Delhi-110 008 is lying
vacant and is always available to the Plaintiff to stay in the said
portion. Thus, there is no question of passing any decree in view of the
fact that the Plaintiff is of advanced age and is having only a life
interest in the suit property.
14. The learned counsel for the Defendants also refers to Arunkumar &
Anr. v. Shriniwas & Ors., (2003) 6 SCC 98, where in similar
circumstances, the bequest in favour of the husband was held to be
only a life estate and the appeal preferred by the testators' nephews
who had been bequeathed the property after the death of testator's
husband was allowed.
15. The following questions arise for determination for disposal of the
instant application:-
(i) Whether there is any unequivocal admission of the Will?
(ii) Whether the Plaintiff was only a life estate holder to enjoy
property no. 13/27, West Patel Nagar, New Delhi-110008 or
whether the property was given absolutely to the Plaintiff?
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(iii) Whether the Plaintiff would be entitled to a decree on
admission?
16. Execution of the Will dated 22.08.1995 has not been disputed by the
Defendants rather they have very much relied on the same. The
Defendants do not say that the Will dated 22.08.1995 is required to be
proved. There are several properties in respect of which bequest has
been made in the instant Will. The property concerned in the instant
suit is ground floor of property no. 13/27, West Patel Nagar, New
Delhi-110008.
17. In Thayyullathil Kunhikannan & Ors. v. Thayyullathil Kalliani &
Ors., AIR 1990 Kerala 226, a Division Bench of the Kerala High
Court held that Section 58 of the Indian Evidence Act, 1872 has to be
read as overriding Section 68 and as obviating the necessity for calling
an attesting witness, unless the execution of the Will or the attestation
is in dispute. In para 34, this is what the Division Bench had to say
about no requirement of proof of the Will where its execution and the
capacity of the testator to execute the Will is admitted:-
"36. Order 8 Rule 5 of the C.P.C. provides that unless
there is a specific denial of any allegation of fact made in
the plaint, it shall be taken to be admitted. Section 58 of
the Evidence Act provides that no fact need be proved in
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any proceedings, which by any rule of pleadings in force
at the time, the parties are deemed to have admitted by
their pleadings. In this case, in the absence of any denial
in the written statement, the genuineness and the validity
of the will, Ext. A1 must be deemed to have been admitted
by the law of pleadings, namely Order 8 Rule 5, and
therefore that fact was not required to be proved at the
trial. Section 68 states that if a document is required by
law to be attested, it shall not be used as evidence until
one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting
witness alive. The proviso to the section which, was
introduced by the amending Act 31 of 1926 makes an
exception in the case of any document, not being a will,
which has been registered, unless its execution by the
persons by whom it purports to have been executed, is
specifically denied. The fact that the proviso is not
applicable to wills, and that it does not make an
exception in the case of registered wills, does not lead to
any inference that a will cannot be acted upon or used as
evidence, unless it has been proved by an attesting
witness. The only effect of the proviso is that registration
of the will by itself does not obviate the necessity of
calling an attesting witness to prove it, if it is otherwise
required to be proved. The proviso does not speak of a
case where a will is not in dispute. Section 68 relates to
those documents which require to be proved at the trial
of a suit. If by any rule of law or of pleadings, such proof
is not required, section 68 cannot operate to insist on
formal proof by calling an attesting witness. Section 58
has to be read as overriding section 68 and as obviating
the necessity for calling an attesting witness, unless the
execution of the will or the attestation is in dispute. In the
absence of any such plea in the written statement, it will
be the height of technicality and waste of judicial time to
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insist on examination of an attesting witness, before a
will could be used as evidence. Phipson on Evidence 12th
Edition (1976) explains the rationale behind examining
an attesting witness as that he is the witness appointed or
agreed upon by the parties to speak to the circumstances
of its execution, "an agreement which, may be waived for
the purposes of dispensing with proof at the trial."
(Paragraph 1751) In paragraph 1757, the learned author
points out that proof of execution of documents required
by law to be attested is dispensed with although the
attesting witness may be alive and in court) "when the
execution has been admitted for purposes of trial." Order
8 Rule 5 C.P.C. deems the execution of the will to be
admitted in the absence of any denial thereof in the
written statement. Examination of an attesting witness is
therefore unnecessary when the parties have not joined
issue on the validity or genuineness of the will."
18. I do subscribe to the view taken by the Division Bench of the Kerala
High Court that when the execution of the Will and capacity of the
testator to execute the Will had not been disputed, the Will can be
taken to be proved, particularly in a civil suit.
19. Now, I shall turn to the most crucial question, that is, whether the
Plaintiff was given only a life estate or whether the property was
vested absolutely in her in the sense that the Plaintiff could alienate or
dispose of the property during her lifetime.
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20. I have extracted earlier the relevant portion of the Will dated
22.08.1995. Section 124 of the Act of 1925 deals with contingent
bequest. Section 124 and illustration (i) are extracted hereunder:-
"124. Bequest contingent upon specified uncertain
event, no time being mentioned for its occurrence. -
Where a legacy is given if a specified uncertain event
shall happen and no time is mentioned in the Will for the
occurrence of that event, the legacy cannot take effect,
unless such event happens before the period when the
fund bequeathed is payable or distributable.
Illustration - (i) A legacy is bequeathed to A, and, in
case of his death, to B. If A survives the testator, the
legacy to B does not take effect."
21. In Kamla Devi v. Prabhawati Devi & Ors., (2001) 10 SCC 602, the
facts were extracted in para 3 of the report and the findings were given
in paras 7 and 8 of the report. The relevant portions of the judgment
are extracted hereunder:-
"3. ........ The execution of the will is not in dispute. Thus
the main question which arises is the interpretation of the
said will. According to the appellant, the will clearly
indicates that after the death of Mahadev Prasad, the
property in question would vest in the appellant i.e. the
wife of the testator absolutely and there is no rider or
limitation under it for its enjoyment. However,
submission for the respondents is that the intention of the
testator becomes clear by reading the whole will which
indicates he desired to distribute it equitably amongst his
sons and grandsons also. If that be so, the testator's
intention could only be to give limited life interest to his
wife (the appellant). It records that after her death it goes
to the sons and grandsons with the shares mentioned
therein. The High Court interpreted this will and held,
the right of the appellant is limited and she has only life
interest. Thus two questions arise. First, whether the
house in question is ancestral or jointly held by three
brothers as joint owners and the second, whether under
the will the appellant has only life interest.
x x x x x x x x x x
7. The other part of the submission is in respect of the
interpretation of the will. We find para 3 of the will itself
is very relevant for the purpose of interpretation of the
will, which is quoted hereunder:
"3. That subsequent to Smt Kamla's death the
persons enumerated thereinafter shall be the
owners of the property that subsists."
8. We find the will in its earlier part recites that on his
death, his wife Smt Kamla Devi (the appellant), shall
become the owner of the property which survives. Use of
the word "survives" here means what remains after the
testator's death. While the testator was still living he may
dispose of some and thus she will become the owner of
what survives. Similarly, we do not find any rider placed
in this will, after vesting of this property unto her or in
any way limiting her right of transfer or disposal.
Finally, the aforesaid quoted portion makes it absolutely
clear that this property given to her under the will was
not limited but made her absolute owner. The significant
words in para 3 quoted above record clearly, subsequent
to the death of the appellant, the persons enumerated in
the will shall be the owner of the property of
what subsists. This means, whatever remains, or the
residual property at the time of her death. So the High
Court misconstrued the will. It clearly confers on the
appellant absolute ownership and not limited ownership.
We may record here that the trial court declined to grant
decree of possession to the appellant against which the
appellant has not preferred any appeal which has
become final."
22. Thus, in Kamla Devi, it was clear that the property had been
bequeathed in favour of the wife without any rider or limitation.
Moreover, bequest in favour of others was made in respect of the
property that subsisted on the death of Kamla Devi. It was, therefore,
evident that whatever was left from the bequest made to Kamla Devi
was to go to the Respondents. Consequently, bequest to others was
contingent upon any property being left by Kamla Devi.
23. Similarly, in Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors.,
(2002) 2 SCC 468, the contents of the Will were extracted in para 7 of
the report which are extracted hereunder:-
"7. We shall now look into the will in the light of the rule
of construction propounded by this Court in Radha
Sundar Dutta v. Mohd. Jahadur Rahim [AIR 1959 SC 24
: 1959 SCR 1309] . The relevant clause of the will is as
under:
"Wasiyat nama haza iqrar karte vo likh dete hai ki bad
vafat Mukir mere Jumla tarka mol mankoola vo ghair
mankoola vo jumla asasulbat vo arazi sir vo khudkast vo
makan vo bag bagaicha gharz jo kuch bhi maujood rahe
uske pane ki musthak phalay jauza mukir ba akhtiyar
intakal hogi jiska nam Sona Devi hai vo bad wafat Sona
Devi ke Ram Sureman vo Ram Ujagar vo Ram Milan ...
haikki hamare hai, honge."
The English translation of the first part of the will is:
"The testator's wife whose name is Smt Sona Devi, would
be entitled to the entire assets and properties with the
right of transfer and after death of Sona Devi...."
24. Referring to Ramkishorelal v. Kamalnarayan, AIR 1963 SC 890 and
Radha Sundar Dutta v. Mohd. Jahadur Rahim, AIR 1959 SC 24, in
Mauleshwar Mani & Ors. the Supreme Court held as under:-
"10. In Ramkishorelal v. Kamalnarayan AIR1963 SC 890
it was held that in a disposition of properties, if there is a
clear conflict between what is said in one part of the
document and in another where in an earlier part of the
document some property is given absolutely to one
person but later on, other directions about the same
property are given which conflict with and take away
from the absolute title given in the earlier portion, in
such a conflict the earlier disposition of absolute title
should prevail and the later directions of disposition
should be disregarded. In Radha Sundar Dutta v. Mohd.
Jahadur Rahim AIR 1959 SC 24 it was held where there
is conflict between the earlier clause and the later
clauses and it is not possible to give effect to all of them,
then the rule of construction is well established that it is
the earlier clause that must override the later clauses and
not vice versa. In Rameshwar Bakhsh Singh v. Balraj
Kuar AIR 1935 PC 187 it was laid down that where an
absolute estate is created by a will in favour of devisee,
the clauses in the will which are repugnant to such
absolute estate cannot cut down the estate; but they must
be held to be invalid.
11. From the decisions referred to above, the legal
principle that emerges, inter alia, are:
(1) where under a will, a testator has bequeathed his
absolute interest in the property in favour of his wife, any
subsequent bequest which is repugnant to the first
bequeath would be invalid; and
(2) where a testator has given a restricted or limited
right in his property to his widow, it is open to the
testator to bequeath the property after the death of his
wife in the same will."
25. Turning to the facts of the instant case, it may be noticed that the
deceased Balwant Rai Nijhawan, who had settled in London, had
made provision of the properties held by him in UK and in India.
Most of the properties which were held by the testator were
bequeathed in favour of his son Anil Kumar Nijhawan (AKN), who
was also settled in London whereas the properties owned in India were
devised in favour of his son Vinod Kumar Nijhawan (VKN),
defendant no. 2 herein.
26. The immovable property mentioned at item no. 5 was bequeathed
absolutely in favour of his son defendant no.2 herein. The dispute is
because of the penultimate paragraph of the Will whereby the testator
has reiterated that he shall remain full owner during his lifetime and
that after his death, his wife will be the owner of all his estates both
movable and immovable and that this Will shall have effect after her
death. So, what can be gathered from the contents of the Will is that
initially all the immovable properties mentioned in the Will situated in
London were given to AKN whereas properties situated in India were
given to VKN.
27. It is well settled that whenever there are contradictions in a Will, then
all the clauses of the Will have to be read together to give harmonious
construction. Of course, in the Will it has not been specifically stated
that the Plaintiff will have only a life estate, yet making first bequest
in favour of the two sons in respect of different properties and then
making bequest of all the immovable properties in favour of the wife
and then stating that the Will shall have effect after her death clearly
indicates that the Will had given a vested right in favour of Defendant
no. 2 in respect of the suit property on the death of the testator. This
was not a contingent right. It was nowhere stated if anything is left
from the bequest, that will go to the beneficiaries on the death of the
Plaintiff Smt. Kamla Nijhawan as was the case in Kamla Devi (supra).
28. In Navneet Lal @ Rangi v. Gokul & Ors., (1976) 1 SCC 630, the
Supreme Court laid down the following principles for construction of
a Will:-
"8. From the earlier decisions of this Court the following
principles, inter alia, are well established:
"(1) In construing a document whether in English or in
vernacular the fundamental rule is to ascertain the
intention from the words used; the surrounding
circumstances are to be considered; but that is only for
the purpose of finding out the intended meaning of the
words which have actually been employed. (Ram
Gopal v. Nand Lal [AIR 1951 SC 139 : (1950) SCR 766,
772] )
(2) In construing the language of the will the court is
entitled to put itself into the testator's armchair (Venkata
Narasimha v. Parthasarathy [41 IA 51, 72 : 21 IC 339 :
15 Bom LR 1010] ) and is bound to bear in mind also
other matters than merely the words used. It must
consider the surrounding circumstances, the position of
the testator, his family relationship, the probability that
he would use words in a particular sense... But all this is
solely as an aid to arriving at a right construction of the
will, and to ascertain the meaning of its language when
used by that particular testator in that document.
(Venkata Narasimha case and Gnanambal Ammal v. T.
Raju Ayyar [AIR 1951 SC 103 : (1950) SCR 949, 955] )
(3) The true intention of the testator has to be gathered
not by attaching importance to isolated expressions but
by reading the will as a whole with all its provisions and
ignoring none of them as redundant or contradictory.
(Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj
Kuer [AIR 1953 SC 7 : (1953) SCR 232, 240] )
(4) The court must accept, if possible, such construction
as would give to every expression some effect rather than
that which would render any of the expressions
inoperative. The court will look at the circumstances
under which the testator makes his will, such as the state
of his property, of his family and the like. Where
apparently conflicting dispositions can be reconciled by
giving full effect to every word used in a document, such
a construction should be accepted instead of a
construction which would have the effect of cutting down
the clear meaning of the words used by the testator.
Further, where one of the two reasonable constructions
would lead to intestacy, that should be discarded in
favour of a construction which does not create any such
hiatus. (Pearey Lal v. Rameshwar Das [AIR 1963 SC
1703 : 1963 Supp (2) SCR 834, 839, 842] )
(5) It is one of the cardinal principles of construction of
wills that to the extent that it is legally possible effect
should be given to every disposition contained in the will
unless the law prevents effect being given to it. Of course,
if there are two repugnant provisions conferring
successive interests, if the first interest created is valid
the subsequent interest cannot take effect but a Court of
construction will proceed to the farthest extent to avoid
repugnancy, so that effect could be given as far as
possible to every testamentary intention contained in the
will. (Ramachandra Shenoy v. Hilda Brite Mrs [AIR
1964 SC 1323 : (1964) 2 SCR 722, 735]"
29. If the above stated five principles are applied and the Will is read as a
whole, there is no doubt that the testator only created a life estate in
respect of various immovable properties in London and in India in
favour of the Plaintiff and the Will was made absolutely in favour of
two sons after the death of the wife. So much so that with regard to
property 'C', the testator had observed that if this property is sold
during his own lifetime, even then the sale proceeds are to go to AKN,
his youngest son. It is thus, clear that immoveble properties were
devised absolutely in favour of his two sons and the Plaintiff was
given only a life estate. The testator had gone to the extent of stating
that apart from the properties which have been devised, if he acquired
any property other than the properties mentioned in the Will, the same
were also to go to his two sons VKN and AKN in equal shares. This
interpretation is also in consonance with the judgment of the Supreme
Court in Arunkumar & Anr. v. Shriniwas & Ors., (2003) 6 SCC 98,
wherein the contents of the Will were extracted in para 2 of the report,
which are as under:-
"2......"After my death, my husband Shri Ramachandra
Ganesh Mudhalwadkar shall be the heir and owner of my
property as detailed below. In accordance with this will
(i) Master Anilkumar, s/o Narhari aged 12 (ii) Master
Arunkumar, s/o Narhari aged 9 (iii) Master Shashikant,
s/o Narhari aged 6, shall be the owners of my property
after the death of my husband. Narhari Shamrao
Satarkar will be their guardian. My property, the details
of which are given below shall be enjoyed by my husband
Shri Ramachandra Ganesh Mudhalwadkar and the
abovenamed (i) Anilkumar (ii) Arunkumar (iii)
Shashikant, sons of Narhari Shamrao Satarkar in
accordance with this will. This will is being made for the
benefit and enjoyment of the property by my abovenamed
husband and minor boys. The said minor boys are the
sons of my niece i.e. the sons of the daughter of my
brother. I have no issues and there is no likelihood of
any, now. These boys and their mother have stayed with
me since their childhood. That is why I have the same
affection for them as if they are my children. Since I am
fond of them, I wish that my property should naturally go
to them after my death and the death of my husband. The
source of my property which is being given away by this
testament is like this. This is my self-acquired property.
At the time of my marriage, my mother has given me 15
tolas of gold. After my marriage my husband has given
me ornaments weighing 20 tolas. Thus 35 tolas of gold is
my stridhan and out of the sale proceeds of gold the said
property is purchased.
The relations of my husband have no right to this estate
nor there will be any in future.""
30. The Trial Judge in the light of Section 124 and illustration (i) of the
Act of 1925 held that the husband inherited the property as full owner
and therefore, the Plaintiffs were entitled to the relief prayed for.
Appeal preferred before the High Court was dismissed. The Supreme
Court while relying on the principles of Navneet Lal allowed the
appeal holding that the testament could not be construed to bequeath
the property absolutely in favour of husband and placing such the
construction would not only amount to rewriting several clauses in the
Will, but would also constitute violence to the language and would
defeat the very intention of the testator.
31. In view of the foregoing discussion, I am of the considered opinion
that the property no. 13/27, West Patel Nagar, New Delhi-110008 was
bequeathed in favour of Defendant no. 2 absolutely with life estate to
the Plaintiff.
32. Now, most vex question is whether the Plaintiff is entitled to a decree
on admission even though she had been granted only a life estate.
33. By an order dated 31.07.2014, the Plaintiff was directed to file an
Affidavit stating the number of days she was in India. Defendant no. 2
was also directed to file an Affidavit stating the portion of the property
which is available to the Plaintiff whenever she visited India. The
Defendants have placed on record the site plan of the entire ground
floor and half of the ground floor, which is shown in red in the site
plan (Annexure I), is stated to be lying vacant and available to the
Plaintiff whenever she visits India, whereas the right portion is being
used as a clinic by Defendant no. 1.
34. In her Affidavit, the Plaintiff testified that she visited India once in the
year 2011 and stayed here from 03.10.2011 to 11.11.2011; again she
visited India on 07.08.2013 and stayed till 30.08.2013. Thus, it
appears that the Plaintiff visits India once in about two years. It also
appears that the relations between the Plaintiff and the Defendants are
not very cordial and that is why, she has filed the instant suit and is
seeking immediate possession of the suit property.
35. I have already held earlier that the Plaintiff is entitled only to a life
estate. Defendant no. 2, or for that matter Defendant no. 1, who is the
son of Defendant no. 2 cannot object to the enjoyment of the life estate
by the Plaintiff. It is not permissible for the parties to give their own
interpretation to the Will and it is for the Court to decipher the real
intention of the testator, which as stated earlier was to create a life
estate without any impediment. The Plaintiff is aged around 93 years
and is at the fag-end of her life, she cannot be compelled to stay only
in the half portion of the ground floor against her wishes.
36. In view of the clear admission, I hereby hold that the Plaintiff is
entitled to a decree for possession. The suit of the Plaintiff is decreed
in terms of prayer (a) of the Plaint.
37. A decree sheet be prepared accordingly.
CS (OS) No. 3048/ 2011
38. The suit shall proceed with regard to other prayers and for
determination of the mesne profits/ damages which may be payable to
the Plaintiff.
39. List before the Joint Registrar for directions and for fixing a date for
recording of remaining evidence of the Plaintiff on 25.09.2014.
(G.P. MITTAL)
JUDGE
SEPTEMBER 03, 2014
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